Temple Island legal agreements

Bristol City Council did not have the information requested.

Dear Bristol City Council,

I wish to see full copies of the following:

1. The lease for the Temple Island site.

2. The contract with Legal & General for Temple Island development.

3. The memorandum of understanding / five year agreement with Legal & General for the Temple Island development.

Yours faithfully,

Joseph Lloyd

Bristol City Council

 
Dear Mr Lloyd
 
Freedom of Information Act 2000
 
 
Thank you for your request for information that was received on 3 January
2020.
 
We are dealing with your request and we aim to send a response by 31
January 2020.
 
If you have any further queries about your request please contact
[1][email address].
 
 
Yours sincerely
 
 
Customer Relations Team
 
NOTE: Please do not edit the subject line when replying to this email.
 
Bristol City Council
This email contains proprietary confidential information some or all of
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Dear Bristol City Council,

This request is now delayed, when can I expect a full response?

Yours sincerely,

Joseph Lloyd

Dear Bristol City Council,

This request is now long overdue.

Yours sincerely,

Joseph Lloyd

Dear Bristol City Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Bristol City Council's handling of my FOI request 'Temple Island legal agreements'.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/t...

Yours faithfully,

Joseph Lloyd

Bristol City Council

1 Attachment

 
Dear Mr Lloyd
 
Thank you for your request for information received on 3 January 2020.
 
Please find attached our response to your request.
 
Yours sincerely
 
 
Penny Bird
Customer Relations Officer
[email address]
 
NOTE: Please do not edit the subject line when replying to this email.
 
Bristol City Council
This email contains proprietary confidential information some or all of
which may be legally privileged and/or subject to the provisions of
privacy legislation. It is intended solely for the addressee. If you are
not the intended recipient, an addressing or transmission error has
misdirected this e-mail; you must not use, disclose, copy, print or
disseminate the information contained within this e-mail. Please notify
the author immediately by replying to this email. Any views expressed in
this email are those of the individual sender, except where the sender
specifically states these to be the views of Bristol City Council.
 
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have been taken to ensure that no viruses are present. Bristol City
Council cannot accept responsibility for any loss or damage arising from
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Dear Bristol City Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Bristol City Council's handling of my FOI request 'Temple Island legal agreements'.

I feel that in the interest of transparency the Council should release the information I have requested.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/t...

Yours faithfully,

Joseph Lloyd

Bristol City Council

 
Dear Mr Lloyd
 
Thank you for your request for a review received on 10 November 2020. I am
sorry that you are unhappy with our response under the Freedom of
Information Act 2000.
 
I can confirm that we are considering your concerns and we will aim to
provide you with a response by 8 December 2020.
 
Yours sincerely
 
 
Data Protection Officer

 
NOTE: Please do not edit the subject line when replying to this email.
 
Bristol City Council
This email contains proprietary confidential information some or all of
which may be legally privileged and/or subject to the provisions of
privacy legislation. It is intended solely for the addressee. If you are
not the intended recipient, an addressing or transmission error has
misdirected this e-mail; you must not use, disclose, copy, print or
disseminate the information contained within this e-mail. Please notify
the author immediately by replying to this email. Any views expressed in
this email are those of the individual sender, except where the sender
specifically states these to be the views of Bristol City Council.
 
This email has been scanned for all viruses and all reasonable precautions
have been taken to ensure that no viruses are present. Bristol City
Council cannot accept responsibility for any loss or damage arising from
the use of this email or attachments.

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Bristol City Council

 
Dear Mr Lloyd
 
Freedom of Information Act 2000
 
 
Further to our e-mail to you of 18 November 2020, we are still not in a
position to respond due complex issues that require further investigation.
 
We will do out best to respond as soon as possible.
 
 
 
Yours sincerely
 
 
Rebecca Kanyangarara
Data Protection Officer
[email address]
 
NOTE: Please do not edit the subject line when replying to this email.
 
Bristol City Council
This email contains proprietary confidential information some or all of
which may be legally privileged and/or subject to the provisions of
privacy legislation. It is intended solely for the addressee. If you are
not the intended recipient, an addressing or transmission error has
misdirected this e-mail; you must not use, disclose, copy, print or
disseminate the information contained within this e-mail. Please notify
the author immediately by replying to this email. Any views expressed in
this email are those of the individual sender, except where the sender
specifically states these to be the views of Bristol City Council.
 
This email has been scanned for all viruses and all reasonable precautions
have been taken to ensure that no viruses are present. Bristol City
Council cannot accept responsibility for any loss or damage arising from
the use of this email or attachments.

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Dear Bristol City Council,

Any update on this?

Yours sincerely,

Joseph Lloyd

Data Protection, Bristol City Council

Dear Mr Lloyd

We apologise for the continued delay.

Please be reassured that we are processing your request and will do our best to respond as soon as possible.

Regards

Becky
Please note that during lockdown, I have changed my working pattern to accommodate childcare, I will not be working on Wednesdays

show quoted sections

Bristol City Council

 
Dear Mr Lloyd
 
Internal review
 
Further to our correspondence dated 08 December 2020.  We would like to
apologise for the delay in providing a response to you. We are still not
in a position to provide you with a response this is because your request
engaged a qualified exemption. 
 
When  a  qualified exemption applies to the information a public interest
test is engaged, the Act allows the time for response to be longer than 20
working days, and a full response must be provided within such time as is
reasonable in all circumstances of the case.  In this instance we have not
yet reached a decision on where the balance of the public interest lies.

 
The delay in the determination is due to the current unprecedented climate
when resources across the council are being redeployed to help tackle the
pandemic, locating the requested information is taking longer that usual. 
 
Therefore, we plan to let you have a response by 5 February 2021. If it
appears that it will take  longer than this to reach a conclusion, we will
keep you informed. 

 
Thank you for your continued patience in this matter. 
 

 

 
Yours sincerely
 
 
Rebecca Kanyangarara
Data Protection Officer
[email address]
 
NOTE: Please do not edit the subject line when replying to this email.
 
Bristol City Council
This email contains proprietary confidential information some or all of
which may be legally privileged and/or subject to the provisions of
privacy legislation. It is intended solely for the addressee. If you are
not the intended recipient, an addressing or transmission error has
misdirected this e-mail; you must not use, disclose, copy, print or
disseminate the information contained within this e-mail. Please notify
the author immediately by replying to this email. Any views expressed in
this email are those of the individual sender, except where the sender
specifically states these to be the views of Bristol City Council.
 
This email has been scanned for all viruses and all reasonable precautions
have been taken to ensure that no viruses are present. Bristol City
Council cannot accept responsibility for any loss or damage arising from
the use of this email or attachments.

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Bristol City Council

 

 

Dear Mr Lloyd

 

Information requested by: Mr Joseph Lloyd

Our ref 4005643 – internal review response

I am writing in response to your concerns about Bristol City Council’s
handling of your request for information (our reference: 4005643) received
on 3 January 2020 which was responded to on 9 November 2020.

Your information request was handled by the Growth & Regeneration
Department. I was appointed to carry out an independent review as an
officer not involved in the original decision.  Before I continue, I would
like to once again apologise for the length of time that it has taken us
to provide you with our response to your request. I hope that this delay
has not inconvenienced you unduly and I would like to thank you for your
patience and understanding in this matter.

In your request dated 3 January 2020 you asked for the following
information:

You requested the following:-

I wish to see full copies of the following:

 1. The lease for the Temple Island site.
 2. The contract with Legal & General for Temple Island development.
 3. The memorandum of understanding / five year agreement with Legal &
General for the Temple Island development.”

Bristol City Council did not respond to your request in line with the
regulations. As such you exercised your right to complain to the
Information Commissioner.   The Commissioner contacted the Council on 18
September 2020 to highlight the outstanding response.

Internal review request 

On 28 June 2020 you contacted Bristol City Council to request an internal
review as you had not received a response.

On 6 October 2020 you again notified the Commissioner that the request had
not been responded to.

A decision Notice was issued to Bristol City Council on 13 October 2020 in
relation to the outstanding response to your request.

Original decision 

Bristol City Council responded to your request on 9 November 2020 to
confirm that we held the information requested.  However, all of the
information was withheld under exemption of the Environmental Information
Regulations (EIR) relying on sections 12(4)(d) and 12(5)(e) of the
Environmental Information Regulations 2004 (EIR) because the requested
information related to unfinished documents or commercial information
where confidentiality is provided by law to protect a genuine economic
interest.

Internal review request 

On 10 November 2020, you asked Bristol City Council to ask a review the
handling of your FOI request 'Temple Island legal agreements'. You
consider that in the interest of transparency the Council should release
the information you have requested.  In our response you were provided
with the memorandum of understanding /five year agreement with Legal &
general for the Temple Island development.  I will confine my review to
points 1 and 2 of your request. We have treated your request for an
internal review in line with the terms of the EIR.

Information held

Following a search of our paper and electronic records, I have established
that the Council holds the information within the scope of your request. I
discussed further with senior members of the Growth & Regeneration team
and our legal team.  The Council considers that the information is exempt
from disclosure under regulation 12(4)(d) of the EIR which relates to
material which is still in the course of completion, unfinished documents
or incomplete data;

Internal review 

I have reviewed the decision to withhold the information under the
following exception:

12(5)(d): unfinished documents

12(5)(e): Confidentiality of commercial or industrial information 

Firstly, I considered whether the scope of the request falls under the
Environmental Information Regulations. Then if so, I considered if the
Council are able to rely on regulation 12(4)(d) - unfinished documents –

and 12(5)(e) - Confidentiality of commercial or industrial information 

I will then consider the balance of the public interest in maintaining the
exception(s) or disclosing the information.

Assessment

Although your request was made under the Freedom of Information Act 2000
(FoIA), the subject matter of the request is for an Agreement for Lease
and associated documentation (which includes the licence with Legal &
General) relate to use of land.  Therefore your request has been
considered under  EIR on the basis that they constitute measures affecting
or likely to affect land ([1]Reg 2(1)(c) EIR). In accordance with the
[2]ICO guidance on environmental information and specifically in relation
to Reg 2(1)(c):

 

“Information on measures and activities affecting or likely to affect the
state of the elements of the environment, or factors such as those listed
in regulation 2(1)(b), is environmental information due to regulation
2(1)(c).

Example

Information on a proposal to build a new retail park is information on a
measure (the building proposal) likely to affect the state of the land as
an element of the environment.”

Your request has therefore been considered under the Environmental
Information Regulation 2004 (“the EIRs”) on the basis that the information
you have sought disclosure of, does in our view, fall within the
definition of “environmental information” as in the EIRs.

I will now proceed to review whether the Council is entitled to rely on
regulations 12(5)e and 12(4)d and to withhold the information.

Regulation 12(4)(d) – material which is still in the course of completion

Regulation 12(4)(d) states that: ‘a public authority may refuse to
disclose information to the extent that the request relates to material
which is still in the course of completion, unfinished documents, or to
incomplete data.’

Regulation 12(4)(d) is engaged when the request relates to information
that is still in the course of completion, unfinished documents or
incomplete data. If the information in question falls into one of these
categories, then the exception is engaged.

This provision has been applied to withhold unfinished documents and
information that relate to, or discuss the content of, those documents.
Guidance published by the Information Commissioner clarifies: “The fact
that the exception refers to both material in the course of completion and
unfinished documents implies that these terms are not necessarily
synonymous. While a particular document may itself be finished, it may be
part of material which is still in the course of completion. An example of
this could be where a public authority is formulating and developing
policy.”

 This same guidance also clarifies that material which is still in the
course of completion can include information created as part of the
process of formulating and developing a policy, decision or
recommendation.

I also considered the decision of the Information Tribunal in the case of
Secretary of State for Transport v the Information Commissioner
(EA/2008/0052, 5 May 2009)1 where, in paragraphs 81 & 82) the Tribunal
held the status of a ‘draft’ document “does not change simply because a
final version exists” and that a draft document “..is, by its very name
and giving words their logical meaning, an unfinished document”.

The Council has applied the exception to the Temple Island Agreement for
Lease and associated documentation. Having viewed the two documents
requested, I can confirm that the negotiations are still ongoing and the
documents are still some way from being completed.

I am therefore satisfied that the Agreement for Lease and associated
documentation (including the contract with Legal & General) are clearly
still in draft form and the that the exception is engaged.

If engaged, the exception is subject to the public interest test under
12(1)b of the EIR. As a result, I considered whether, in all the
circumstances of the case, the public interest in maintaining the
exception outweighs the public interest in disclosing the information.

In considering the public interest we have applied a presumption in favour
of disclosure for environmental information as required by regulation
12(2) of the EIRs.

The key public interest considerations we have taken into account are set
out below.

Factors against disclosure

* The parties to the documents have attested that the Agreement for
Lease and associated documentation remain in draft form with certain
terms still being negotiated by the parties. I am further informed
that this is a very complex transaction with negotiations having
started in earnest following the Cabinet decision to proceed.

 

* Consequently, the Council argues that there is a public interest in
both parties being afforded a safe space to conclude negotiations
about the Temple Island in order to finalise the Agreement for Lease
and associated documentation. In this case the disclosure of the
related information would affect the “safe space” that is needed to
effectively consider all aspects relating to the matter in hand.

 

* The Council also believes that disclosure of the Agreement for Lease
and associated documentation in draft form would set a precedent for
disclosure of the key documents such as contracts still under
negotiation.

 

* The exemption is designed to allow policy officials to take a thorough
approach to policy making by exploring as many relevant channels as
possible, not all of which will be relevant to final agreements.
Allowing this ‘safe space’ enables officials to be frank when
considering all aspects of agreement formation.

 

 

* The Council also considers that there is a public interest in ensuring
that inaccurate and misleading information is not put into the public
domain. The public interest is better served if the Council and 3^rd
parties involved are afforded a safe space to conclude their
negotiations. There is a public interest in ensuring that inaccurate
and incomplete information is not put into the public domain.
Disclosure of the information would affect detrimentally the Council’s
and Legal and General’s ability to conclude the negotiations, their
partnership working and ultimately the services that they deliver to
the public. The inaccurate information would have a misleading effect
which in turn would lead to the information to be contextualised,
thereby initiate comment and representation from third parties that
will detract from the task at hand.  The Council’s concern about third
parties making comments and detracting from negotiations are
sufficiently real.

Factors for disclosure

There is always a general public interest in the disclosure of
environmental information. The EIR implement EU Directive 2003/4/EC which
states:

‘Increased public access to environmental information and the
dissemination of such information contribute to a greater awareness of
environmental matters, a free exchange of views, more effective
participation by the public in environmental decision-making and,
eventually to a better environment.’

* This is a general argument regarding transparency of environmental
information, which must then be considered against the specifics of
this case. It is not necessary to demonstrate where disclosure might
have any adverse effect in order to engage this exception, but any
adverse effects of disclosure may be relevant to the public interest
test considerations.
* We recognise that there is some public interest in release as part of
open, transparent and accountable Local Authority.

However, this is outweighed by the public interest in ensuring that
unfinished or incomplete information which is still being worked on or is
under active consideration is not disclosed when it might misinform the
public or give a misleading impression of the council's view or position
on the matter to which the information relates.

Having considered the balance of the public interest, we I conclude that
the public interest in maintaining this regulation outweighs the public
interest in disclosing the information in this instance.

Regulation 12(5)e – confidentiality of commercial or industrial
information

Regulation 12(5)e states:

 ‘For the purposes of paragraph (1)(a), a public authority may refuse to
disclose information to the extent that its disclosure would adversely
affect— (e) the confidentiality of commercial or industrial information
where such confidentiality is provided by law to protect a legitimate
economic interest’

In reviewing whether the exception is engaged, I applied a four-stage
test, of which all must be met:

* The information is commercial or industrial in nature
* Confidentiality is provided by law
* The confidentiality is protecting a legitimate economic interest
* The confidentiality would be adversely affected by disclosure

The Council has applied the exception owing to specific definitions and
clauses in the draft Agreement for Lease and associated documentation
between Bristol City Council and Legal and General.

For information to be commercial in nature, it will need to relate to a
commercial activity such as the sale or purchase of goods / services,
usually for profit. The withheld information concerns aa Agreement for
Lease and associated documentation for the transfer of an interest in
land. I therefore accept that the this is commercial in nature.

Is confidentiality provided by law?

In addition to the information needing to be commercial or industrial in
nature, it must also be subject to a contractual or common law duty of
confidence. The information must not be trivial in nature, or already
publicly available.

The Council has confirmed that the Agreement for Lease and associated
documentation are not publicly available, and steps have been taken to
restrict access to the documentation internally e.g. not distributing the
contract electronically.

 

I consider that as the Agreement for Lease and associated documentation
contains the terms for the disposal of an interest in land, including
commercial information, these are confidential to the parties concerned
and therefore possess the necessary quality of confidence. The Agreement
for Lease and associated documentation details the Council’s and 3^rd
parties’ commercial approach to the disposal and development of land at
Temple Island, this also provides for the necessary quality of confidence.

Furthermore, the Agreement for Lease and associated documentation contain
confidentiality clauses within them including the requirement to protect
confidential information. However, this does not mean that all contractual
information is confidential, and regulation 5(6) disapplies any statutory
bars on disclosure of environmental information. These confidentiality
clauses within the contract prevent disclosure of the withheld
information.

Taking account of the nature of the Agreement for Lease and associated
documentation, along with the reasonable expectations of those parties
involved, I agree with the Council that the information attracts a common
law duty of confidence.

Is the information protecting a legitimate economic interest? Would
disclosure harm that interest?

I considered whether the disclosure of the Agreement for lease and
associated documentation in their draft form would adversely affect the
legitimate economic interest of the Council, third parties, or both.
Mindful that it is not enough that a disclosure might cause some harm to
an economic interest; a public authority must evidence that it would be
more probably than not that should the information be disclosed, it would
cause some harm.

The legitimate economic interests the confidentiality is protecting
includes:

* Not prejudicing its position in respect of ongoing negotiations
* Protecting public money by not prejudicing the Council’s commercial
and bargaining position concerning the disposal of land and its
subsequent development

 

I am satisfied that the legitimate economic interests identified above are
real in relation to the Agreement for Lease and associated documentation. 

I then considered whether disclosure of the information would harm those
interests. The information from the Agreement for Lease and associated
documentation in the ongoing negotiations.  Other third parties would
undercut Legal &General to their detriment as a result of knowing the
structure and financial content of the transaction.

Considering the sensitivity of the information at the time of the request
and the present time, I accept that the confidentiality that was agreed or
expected still requires protecting.

I therefore agree with the original response that the exception at
Regulation 12(5)(e) is engaged and have therefore proceeded to focus my
review on whether it is in the public interest to release the information.

Public interest test

Despite Regulation 12(5)(e) being engaged, we are required to consider the
public interest test because the information may still be disclosed if
there is sufficient public interest in doing so.  I have concluded that
the public interest factors in favour of maintaining the exemption
outweigh those in favour of disclosure. Please see the public interest
test factors below.

Factors supporting disclosure:

* The Council recognises the importance of transparency and that
disclosure of the requested information will ensure that it remains
accountable to the public in respect of its operations and decision
making.
* Disclosing information would contribute to the development of public
debate and allow the public to understand the rationale behind the
Council’s decisions.

Factors supporting non-disclosure:

* As per ICO guidance for the ‘Consideration of the identity or motives
of the applicant.’ “Authorities should view disclosure as a release of
information into the public domain. This means that they must consider
the consequences of disclosure to the world at large, and not just the
impact of providing the material to the requester.” Therefore, in this
instance, disclosure could jeopardise commercial confidence in all
parties. There is an inherent public interest that commercial
information including financial information should be treated
confidentially, especially information related to third parties in
commercial negotiations.
* The process must be seen to be fair and that commercial interests of
the parties are not unduly prejudiced by the release of commercially
sensitive information. It is important to maintain the confidence of
such transactions during the negotiation stage , in order to achieve
best value for tax payers;
* As previously stated, if this information was disclosed, it would hold
a significant commercial value to the parties’ s competitors.

* The negotiations are still ‘live’ and on-going, and it is in the wider
public interest that the Council is allowed a “safe space” to
negotiate good value for money transactions away from external
interference and distraction.

* Legal & General have specifically written to the Council requesting
that the documents are not published or released during the
negotiation stage as they contain their unique methodology which they
consider to be commercially sensitive and do not wish for it to be
released.

The Council has considered the harm that would be caused by disclosing the
requested information. When weighing the factors favouring disclosure
against those favouring non-disclosure, the Council has demonstrated that
the combined weight of factors favouring non-disclosure strongly outweigh
the combined weight of those favouring disclosure. We feel it is
appropriate in this case to maintain the exemption and withhold the
requested information.

 

Decision 

We therefore uphold our original decision that the exceptions at Section
sections 12(4)(d) and 12(5)(e) of the Environmental Information
Regulations 2004 (EIR) applies and the Council was correct to refuse your
request. 

 

 

If you are not content with the outcome of this Internal Review you have
the right to apply directly to the Information Commissioner’s Office for a
further decision. The Information Commissioner can be contacted at:

 

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

 

[3]www.ico.org.uk 

 

Helpline on 0303 123 1113

 

Yours sincerely

 

 

Rebecca Kanyangarara
Freedom of Information Officer
[email address]

 
NOTE: Please do not edit the subject line when replying to this email.
 
Bristol City Council
This email contains proprietary confidential information some or all of
which may be legally privileged and/or subject to the provisions of
privacy legislation. It is intended solely for the addressee. If you are
not the intended recipient, an addressing or transmission error has
misdirected this e-mail; you must not use, disclose, copy, print or
disseminate the information contained within this e-mail. Please notify
the author immediately by replying to this email. Any views expressed in
this email are those of the individual sender, except where the sender
specifically states these to be the views of Bristol City Council.
 
This email has been scanned for all viruses and all reasonable precautions
have been taken to ensure that no viruses are present. Bristol City
Council cannot accept responsibility for any loss or damage arising from
the use of this email or attachments.

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Bristol City Council

 
Dear Mr Lloyd
 
Freedom of Information Act 2000
 

Request - Temple Island 

Resending the below as our system did not seem to register the response we
sent below yesterday:

We have received a letter from the ICO following your complaint to them. 

You requested to see full copies of:

 1. The lease for the Temple Island site.
 2. The contract with Legal & General for Temple Island development.
 3. The memorandum of understanding/five year agreement with Legal &
General for the Temple Island development.

We have explained to the ICO that notwithstanding the intentions of BCC
with regard to the development of the land at Temple Island no documents
have yet been signed.  Whilst BCC have commenced enabling works on the
site the information you request is not yet held by the authority.  We
suggest you resubmit your request in 2 months time in anticipation of
final documents being signed.  

The ICO are aware of this response.

Yours sincerely

 
 
 
Lynne Miller
Data Protection Manager
[email address]
 
NOTE: Please do not edit the subject line when replying to this email.
 
Bristol City Council
This email contains proprietary confidential information some or all of
which may be legally privileged and/or subject to the provisions of
privacy legislation. It is intended solely for the addressee. If you are
not the intended recipient, an addressing or transmission error has
misdirected this e-mail; you must not use, disclose, copy, print or
disseminate the information contained within this e-mail. Please notify
the author immediately by replying to this email. Any views expressed in
this email are those of the individual sender, except where the sender
specifically states these to be the views of Bristol City Council.
 
This email has been scanned for all viruses and all reasonable precautions
have been taken to ensure that no viruses are present. Bristol City
Council cannot accept responsibility for any loss or damage arising from
the use of this email or attachments.

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